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同性恋者隐瞒性取向缔结异性婚姻,已逐渐受到中国法律实务界注意。然而,“可撤销婚姻”等立法建言着眼于对异性恋一方的权益保护,不但有可能导致成年同性恋者的社会生存空间进一步逼仄,而且无法切实有效保障异性恋者的婚姻权益。西方当代同性恋立法模式与中国社会国情不无抵牾,“集体失语”的现实格局致使立法活动缺乏动力和后劲。中国传统社会以孝为核心的婚姻家庭观念、历代王朝所秉持的“移孝作忠”的政治意识,与西方重视自我实现、强调个人价值的法治传统存在着深刻抵触,并决定了近代经由“西法东渐”而开启的中国法治历程自始存在无法摆脱的价值冲突。中国特殊的法治背景,一方面使隐瞒性取向婚姻作为一个道德问题、社会问题、法律问题而孕育成熟,浮出水面,另一方面也妨碍了该问题在现有的法治格局中的解决。在“法治中国”的时代感召下,为突破这一困局起见,我们的法律应当更加认真地对待个人权利,深刻关注包括同性恋者在内的个体自然人的内在尊严,营造对同性恋者开放、友好的文化氛围和社会舆论环境,并积极引导中国社会民众价值观念的革新。
Homosexuals conceal sexual orientation to conciliate heterosexual marriage, which has gradually attracted the attention of Chinese legal practitioners. However, legislative proposals such as “revocable marriage” focus on the protection of rights and interests of heterosexual parties, which may not only lead to further reduction of social living space for homosexuals, but also fail to effectively and effectively protect heterosexuals’ marital rights and interests. The contemporary legislation model of homosexuality in the West is not inconsistent with that of the Chinese society. The reality of “collective aphasia” leads to lack of motivation and stamina in legislative activities. The concept of marriage and family taking filial piety as the core in Chinese traditional society and the political consciousness of “shifting filial piety and loyalty” advocated by dynasties dwell on the conflict with the Western tradition of rule of law emphasizing self-realization and personal value. “The beginning of Western France and East gradually ” and opened the Chinese rule of law existence from the beginning can not get rid of the value of the conflict. The special background of the rule of law in China, on the one hand, has made concealment of sexual orientation marriage as a moral issue, social issue and legal issue, and has surfaced. On the other hand, it has also hindered the settlement of the existing problem in the rule of law. Inspired by the era of “rule of law in China,” in order to break through this predicament, our laws should take individual rights more seriously, pay close attention to the inherent dignity of individual natural persons including homosexuals, and create an open door to homosexuals , Friendly cultural atmosphere and social media environment, and actively guide the innovation of the values of the Chinese community.